The labor dispute case analysis - the case of foreign labor disputes

[dispute case - foreign labor disputes the labor dispute]With the overseas dispatch qualified enterprises did not sign labor contracts with domestic, not for normal working abroad visa, employment procedures, be sent to work abroad, finally enterprise denies the labor relations, workers how adults?

[keyword] foreign labor dispute case of foreign labor did not sign labor contract fails to apply for the work visa denied labor relations

The plaintiff (respondent): Wang

The defendant (the plaintiff): China* *Limited by Share Ltd (hereinafter referred to in* *Construction company)

The basic case, the labor dispute case

Wang2009Years2Month13Date of entry China* *Limited by Share Ltd, work in the Pakistan project department. The two sides did not sign labor contracts, verbal agreement Wang for general managers (as the project manager), butChina* *Limited by Share LtdNon payment of wages by the project manager Wang standard, andIn the* *Construction companyIn the2009Years11Month30On the illegal remove labor contract. Wang Mou to2009Years12Month to Beijing Haidian Labor Arbitration Commission for arbitration, request* *The construction company to pay an illegal remove labor contract damages36000Yuan; pay2009Years2Month13To2009Years11Month30On the actual work and agreed to work wage differentials62482.83Element, and pay the25%Economic compensation15620.71Yuan; pay2009Years2Month13To2009Years11Month30Days did not take paid annual leave pay32276.01Element, and25%Economic compensation8096Yuan; pay2009Years3Month5To2009Years10Month19On the extension of working hours of overtime39569.62Yuan and25%Economic compensation9892.41Yuan; pay2009Years2Month15To2009Years11Month8On holidays, overtime64552.02Yuan and25%Economic compensation16138Yuan; pay2009Years2Month13To2009Years11Month6On legal holiday overtime14896.62Element, and25%Economic compensation3724.16Yuan; pay2009Years3Month13To2009Years11Month30Japan did not sign labor contract two times the wage gap119800Element.

In the* *The company argued, and Wang for labor, both sides does not exist labor relations, it did not agree with the application request. Wang entry for* *The building of six employees, working on secondment to the project office; office for civil engineers, a monthly12000Yuan standard pay the remuneration; last working date2009Years11Month12Day, the two sides of labor relations today after full payment of the reward; company, and the other to pay1.5Month salary as compensation terminate labor relation. In the* *To build another company that long-term expatriate staff shall not regular working hours system.

Beijing City, the Haidian Arbitration Commission ruled that the two sides of labor relations, in* *Construction companies a one-time payment of Wang illegal termination of labor relations in compensation26482.76Element; a one-time payment2009Years2Month13To2009Years11Month30On the actual work and agreed to work wage differentials62482.83Yuan, a one-time payment of Wang2009Years3Month13To2009Years11Month13Japan did not sign labor contract two times the wage gap116551.72Yuan Wang; a one-time payment2009Years2Month13To2009Years11Month13To date no annual leave pay8710.32Yuan; reject the other application.

Both sides refused to accept the labor dispute arbitration, both the prosecution to the Beijing Haidian District people's court.

The plaintiff (respondent) Wang think the arbitration organ for jobs and the release of the labor relation erroneous application of the law, asked the court to order the defendant to the plaintiff (the plaintiff) (the defendant) pay for illegal remove labor contract damages, economic compensation, overtime and annual leave pay, and by the defendant (the plaintiff) assume the case fee.

The defendant (the plaintiff)* *The company argued and complained that: the defendant (the plaintiff) and the plaintiff (respondent) from the law and the facts do not exist labor relations. In the* *The company believes that Wang is to apply for a tourist visa to go abroad, and then introduced to Pakistan project department through fellow townsman, illegal employment, only by the company to the foreign passport for working staff sent to work abroad. The two sides in the2009Years11Month13The lifting of labor relations, rather than the plaintiff (respondent) said to2009Years11Month30Date of termination of labor relations. Beijing city Haidian District arbitration verdict that double labor relations is wrong, so the defendant (the plaintiff) request the people's court without payment of compensation to the plaintiff. And the plaintiff to bear the cost of litigation.

Two, the labor dispute case trial results

Beijing Haidian District people's court after hearing that* *Construction company advocate the labor and Wang is the relationship, Wang Mou to apply for a tourist visa to go abroad, and then introduced to Pakistan project department through its fellow, illegal employment, but not in the burden of proof* *Construction company as the employer, should bear the employment qualifications review obligations, so the hospital does not accept. This house believes that both sides in the2009Years2Month13Days to establish labor relations, as in* *Construction company did not sign a written labor contract or agreement with the plaintiff, the plaintiff (respondent) to pay two times the wage. The two sides in the2009Years11Month13Date of termination of labor relations, but is unable to confirm the legitimate reason to remove, so should the plaintiff (respondent) pay for illegal termination of labor relations in compensation. Because of not full a year, does not enjoy the annual leave, annual leave pay for not supporting. For the plaintiff (respondent) other claims, due to lack of evidence, not support.

Three, the labor dispute case assessment opinion

The focus of foreign labor dispute case is domestic and overseas dispatch qualified enterprises have not signed labor contracts, not for normal employment abroad work visa, be sent to work abroad, finally enterprise denies the labor relationship, labor how to safeguard their rights? Lawyers in the careful analysis of the legal relationship of the parties to receive clients, advise the parties requested by the overseas project department issued a notice to terminate the labor relationship, according to the written notice, the case in Beijing City, the Haidian arbitration commission. That is to say the foreign nature of the labor disputes, according to case analysis.

If the overseas labor service personnel and labor dispatch company did not sign labor contract, nor in accordance with the normal procedures for going through the formalities, resulting in "work" phenomenon. Once a dispute, the overseas labor service personnel will be how to rights? We believe that if the overseas enterprises without foreign dispatch qualification, while the domestic service personnel sent abroad to disputes, if not sign labor contract, the labor arbitration committee for overseas labor service personnel to assignment of registered enterprises apply for arbitration, citing facts labor relations, compensation. If the overseas enterprises have overseas dispatch qualification, but did not sign a contract with the overseas labor service personnel, nor for the formal procedures for going abroad, such as the case in this* *The company has built overseas qualifications, but not with expatriate staff sign labor contract, once a dispute, if the overseas enterprise independent of domestic leasing company, overseas labor service personnel may consult domestic and expatriate business requirements for help outwards to compensation, or request dispatching enterprise compensation. If the overseas enterprises belonging to the domestic leasing company, can be sent to domestic enterprises to apply for arbitration as the object.

In short, the labor dispute cases has certain typical, but foreign labor disputes is relatively complex, the rights and interests of workers in various forms, the case can not be all covered. If the injury occurred similar serious incident, the labor rights of way is very difficult. When lawyers can help the party to illegal overseas enterprise to reflect to the relevant departments, such as the Public Security Bureau, Construction Committee, bureau of Commerce, trade unions and other government departments of complaints and seek help. Exit Entry Administration Bureau, Commerce Bureau of Public Security Bureau is the Department, supervision and management of foreign labor dispatch enterprises once intervention, to the role of activist success. And with the trade unions role gradually increased, one way to help is the expatriate workers trade union rights, and even in some cases unions assistance has played a decisive role, for example"The first successful mediation of foreign industrial death dispute "is the Union through a long-distance video"The negotiations"The success for the party, for54.2Million in damages. (the author: smell the law firm Shen Binti, Liu Fen)

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  Beijing Shen Binti the labor law service:Beijing Dongzhimen South Street3Actually building No.18Building smell law firm; e-mail:Shenbinti@yahoo.com.cn  Business telephone:(+86) 15301115671(+86)13661313967 ;Interactive blog:Http://blog.sina.com.cn/shenbinti

Shen Binti lawyers:Shen Binti, female, Beijing City Labor and Social Security Law Association, Xiamen University, master of law, Beijing labor law expert, Beijing Wen law firm partner. Research on the legal disputes in the Shen Binti lawyers professional, focused on the cases of labor disputes and labor law, labor law training as a special consultant. Practising address: Beijing Dongzhimen South Street3Actually building No.18Buildings; e-mail:Shenbinti@yahoo.com.cn  Business telephone:(+86)15301115671(+86)13661313967.Interactive blog:Http://blog.sina.com.cn/Shenbinti